§ 22-3-7-16 — Disablements; awards

Indiana § 22-3-7-16

• Jurisdiction: Indiana
• Art. 3: WORKER'S COMPENSATION SYSTEM
• Ch. 7: Worker's Occupational Diseases Compensation

Text

(a) Compensation shall be allowed on account
of disablement from occupational disease resulting in only temporary
total disability to work or temporary partial disability to work
beginning with the eighth day of such disability except for the medical
benefits provided for in section 17 of this chapter. Compensation shall
be allowed for the first seven (7) calendar days only as provided in this
section. The first weekly installment of compensation for temporary
disability is due fourteen (14) days after the disability begins. Not later
than fourteen (14) days from the date that the first installment of
compensation is due, the employer or the employer's insurance carrier
shall file a report of payment of compensation with the worker's
compensation board electronically and tender to the employee or to the
employee's dependents, with all compensation due, a properly prepared
compensation agreement in a form prescribed by the board. The
presentation to the employee or to the employee's dependents of the
check, draft, or electronic payment from the employer or the employer's
insurance carrier for the proper amount, drawn upon a bank in which
money is on deposit to pay the same on demand, shall be sufficient
tender of the compensation.
(b) Whenever an employer or the employer's insurance carrier
denies or is not able to determine liability to pay compensation or
benefits, the employer or the employer's insurance carrier shall notify
the worker's compensation board and the employee in writing on a form
prescribed by the worker's compensation board not later than thirty (30)
days after the employer's knowledge of the claimed disablement. If a
determination of liability cannot be made within thirty (30) days, the
worker's compensation board may approve an additional thirty (30)
days upon a written request of the employer or the employer's insurance
carrier that sets forth the reasons that the determination could not be
made within thirty (30) days and states the facts or circumstances that
are necessary to determine liability within the additional thirty (30)
days. More than thirty (30) days of additional time may be approved by
the worker's compensation board upon the filing of a petition by the
employer or the employer's insurance carrier that sets forth:
(1) the extraordinary circumstances that have precluded a
determination of liability within the initial sixty (60) days;
(2) the status of the investigation on the date the petition is filed;
(3) the facts or circumstances that are necessary to make a
determination; and
(4) a timetable for the completion of the remaining investigation.
An employer who fails to comply with this section is subject to a civil
penalty under IC 22-3-4-15.
(c) Once begun, temporary total disability benefits may not be
terminated by the employer unless:
(1) the employee has returned to work;
(2) the employee has died;
(3) the employee has refused to undergo a medical examination
under section 20 of this chapter;
(4) the employee has received five hundred (500) weeks of
temporary total disability benefits or has been paid the maximum
compensation allowable under section 19 of this chapter; or
(5) the employee is unable or unavailable to work for reasons
unrelated to the compensable disease.
In each instance, the employer must provide written notice to the
injured worker on a form approved by the board. In all other cases the
employer must notify the employee in writing of the employer's intent
to terminate the payment of temporary total disability benefits, and of
the availability of employment, if any, on a form approved by the
board. In all instances, the employer must file an electronic notice of
the termination with the board.
(d) If the employee disagrees with the termination or proposed
termination, the employee must give written notice of disagreement to
the board and the employer within seven (7) days after receipt of the
notice of intent to terminate benefits. If the board and employer do not
receive a notice of disagreement under this section, the employee's
temporary total disability benefits shall be terminated. Upon receipt of
the notice of disagreement, the board shall immediately contact the
parties, which may be by telephone or other means and attempt to
resolve the disagreement. If the board is unable to resolve the
disagreement within ten (10) days of receipt of the notice of
disagreement, the board shall immediately arrange for an evaluation of
the employee by an independent medical examiner. The independent
medical examiner shall be selected by mutual agreement of the parties
or, if the parties are unable to agree, appointed by the board under IC 22-3-4-11. If the independent medical examiner determines that the
employee is no longer temporarily disabled or is still temporarily
disabled but can return to employment that the employer has made
available to the employee, or if the employee fails or refuses to appear
for examination by the independent medical examiner, temporary total
disability benefits may be terminated. If either party disagrees with the
opinion of the independent medical examiner, the party shall apply to
the board for a hearing under section 27 of this chapter.
(e) An employer is not required to continue the payment of
temporary total disability benefits for more than fourteen (14) days
after the employer's proposed termination date unless the independent
medical examiner determines that the employee is temporarily disabled
and unable to return to any employment that the employer has made
available to the employee.
(f) If it is determined that as a result of this section temporary total
disability benefits were overpaid, the overpayment shall be deducted
from any benefits due the employee under this section and, if there are
no benefits due the employee or the benefits due the employee do not
equal the amount of the overpayment, the employee shall be
responsible for paying any overpayment which cannot be deducted
from benefits due the employee.
(g) For disablements occurring on and after July 1, 1976, from
occupational disease resulting in temporary total disability for any work
there shall be paid to the disabled employee during the temporary total
disability weekly compensation equal to sixty-six and two-thirds
percent (66 2/3%) of the employee's average weekly wages, as defined
in section 19 of this chapter, for a period not to exceed five hundred
(500) weeks. Compensation shall be allowed for the first seven (7)
calendar days only if the disability continues for longer than twenty-one
(21) days.
(h) For disablements occurring on and after July 1, 1974, from
occupational disease resulting in temporary partial disability for work
there shall be paid to the disabled employee during such disability a
weekly compensation equal to sixty-six and two-thirds percent (66
2/3%) of the difference between the employee's average weekly wages,
as defined in section 19 of this chapter, and the weekly wages at which
the employee is actually employed after the disablement, for a period
not to exceed three hundred (300) weeks. Compensation shall be
allowed for the first seven (7) calendar days only if the disability
continues for longer than twenty-one (21) days. In case of partial
disability after the period of temporary total disability, the latter period
shall be included as a part of the maximum period allowed for partial
disability.
(i) With respect to disablements in the following schedule occurring
on and after July 1, 1991, the employee shall receive in addition to
temporary total disability benefits, not exceeding one hundred
twenty-five (125) weeks on account of the disablement, compensation
in an amount determined under the following schedule to be paid
weekly at a rate of sixty-six and two-thirds percent (66 2/3%) of the
employee's average weekly wages during the fifty-two (52) weeks
immediately preceding the week in which the disablement occurred:
(1) Amputation: For the loss by separation of the thumb, twelve
(12) degrees of permanent impairment; of the index finger, eight
(8) degrees of permanent impairment; of the second finger, seven
(7) degrees of permanent impairment; of the third or ring finger,
six (6) degrees of permanent impairment; of the fourth or little
finger, four (4) degrees of permanent impairment; of the hand by
separation below the elbow joint, forty (40) degrees of permanent
impairment; of the arm above the elbow, fifty (50) degrees of
permanent impairment; of the big toe, twelve (12) degrees of
permanent impairment; of the second toe, six (6) degrees of
permanent impairment; of the third toe, four (4) degrees of
permanent impairment; of the fourth toe, three (3) degrees of
permanent impairment; of the fifth or little toe, two (2) degrees of
permanent impairment; of separation of the foot below the knee
joint, thirty-five (35) degrees of permanent impairment; and of the
leg above the knee joint, forty-five (45) degrees of permanent
impairment.
(2) Amputations occurring on or after July 1, 1997: For the loss
by separation of any of the body parts described in subdivision (1)
on or after July 1, 1997, the dollar values per degree applying on
the date of the injury as described in subsection (j) shall be
multiplied by two (2). However, the doubling provision of this
subdivision does not apply to a loss of use that is not a loss by
separation.
(3) The loss of more than one (1) phalange of a thumb or toe shall
be considered as the loss of the entire thumb or toe. The loss of
more than two (2) phalanges of a finger shall be considered as the
loss of the entire finger. The loss of not more than one (1)
phalange of a thumb or toe shall be considered as the loss of
one-half (1/2) of the degrees of permanent impairment for the loss
of the entire thumb or toe. The loss of not more than one (1)
phalange of a finger shall be considered as the loss of one-third
(1/3) of the finger and compensation shall be paid for one-third
(1/3) of the degrees payable for the loss of the entire finger. The
loss of more than one (1) phalange of the finger but not more than
two (2) phalanges of the finger shall be considered as the loss of
one-half (1/2) of the finger and compensation shall be paid for
one-half (1/2) of the degrees payable for the loss of the entire
finger.
(4) For the loss by separation of both hands or both feet or the
total sight of both eyes or any two (2) such losses in the same
accident, one hundred (100) degrees of permanent impairment.
(5) For the permanent and complete loss of vision by enucleation
or its reduction to one-tenth (1/10) of normal vision with glasses,
thirty-five (35) degrees of permanent impairment.
(6) For the permanent and complete loss of hearing in one (1) ear,
fifteen (15) degrees of permanent impairment, and in both ears,
forty (40) degrees of permanent impairment.
(7) For the loss of one (1) testicle, ten (10) degrees of permanent
impairment; for the loss of both testicles, thirty (30) degrees of
permanent impairment.
(8) Loss of use: The total permanent loss of the use of an arm, a
hand, a thumb, a finger, a leg, a foot, a toe, or a phalange shall be
considered as the equivalent of the loss by separation of the arm,
hand, thumb, finger, leg, foot, toe, or phalange, and compensation
shall be paid in the same amount as for the loss by separation.
However, the doubling provision of subdivision (2) does not
apply to a loss of use that is not a loss by separation.
(9) Partial loss of use: For the permanent partial loss of the use of
an arm, a hand, a thumb, a finger, a leg, a foot, a toe, or a
phalange, compensation shall be paid for the proportionate loss of
the use of the arm, hand, thumb, finger, leg, foot, toe, or phalange.
(10) For disablements resulting in total permanent disability, the
amount payable for impairment or five hundred (500) weeks of
compensation, whichever is greater.
(11) Visual impairments shall be based on the Functional Vision
Score (FVS) assessing the visual acuity and visual field to
evaluate any reduction in ability to perform vision-related
Activities of Daily Living (ADL). Unless such loss is otherwise
specified in subdivision (5), visual impairments shall be paid as
a whole person rating.
(12) For any permanent reduction of the hearing of one (1) or both
ears, less than the total loss as specified in subdivision (6),
compensation shall be paid in an amount proportionate to the
degree of a permanent reduction.
(13) In all other cases of permanent partial impairment,
compensation proportionate to the degree of a permanent partial
impairment, in the discretion of the worker's compensation board,
not exceeding one hundred (100) degrees of permanent
impairment.
(14) In all cases of permanent disfigurement which may impair
the future usefulness or opportunities of the employee,
compensation, in the discretion of the worker's compensation
board, not exceeding forty (40) degrees of permanent impairment
except that no compensation shall be payable under this
subdivision where compensation is payable elsewhere in this
section.
(j) With respect to disablements occurring on and after July 1, 1991,
compensation for permanent partial impairment shall be paid according
to the degree of permanent impairment for the disablement determined
under subsection (i) and the following:
(1) With respect to disablements occurring on and after July 1,
2010, and before July 1, 2014, for each degree of permanent
impairment from one (1) to ten (10), one thousand four hundred
dollars ($1,400) per degree; for each degree of permanent
impairment from eleven (11) to thirty-five (35), one thousand six
hundred dollars ($1,600) per degree; for each degree of
permanent impairment from thirty-six (36) to fifty (50), two
thousand seven hundred dollars ($2,700) per degree; for each
degree of permanent impairment above fifty (50), three thousand
five hundred dollars ($3,500) per degree.
(2) With respect to disablements occurring on and after July 1,
2014, and before July 1, 2015, for each degree of permanent
impairment from one (1) to ten (10), one thousand five hundred
seventeen dollars ($1,517) per degree; for each degree of
permanent impairment from eleven (11) to thirty-five (35), one
thousand seven hundred seventeen dollars ($1,717) per degree;
for each degree of permanent impairment from thirty-six (36) to
fifty (50), two thousand eight hundred sixty-two dollars ($2,862)
per degree; for each degree of permanent impairment above fifty
(50), three thousand six hundred eighty-seven dollars ($3,687) per
degree.
(3) With respect to disablements occurring on and after July 1,
2015, and before July 1, 2016, for each degree of permanent
impairment from one (1) to ten (10), one thousand six hundred
thirty-three dollars ($1,633) per degree; for each degree of
permanent impairment from eleven (11) to thirty-five (35), one
thousand eight hundred thirty-five dollars ($1,835) per degree; for
each degree of permanent impairment from thirty-six (36) to fifty
(50), three thousand twenty-four dollars ($3,024) per degree; for
each degree of permanent impairment above fifty (50), three
thousand eight hundred seventy-three dollars ($3,873) per degree.
(4) With respect to disablements occurring on and after July 1,
2016, and before July 1, 2023, for each degree of permanent
impairment from one (1) to ten (10), one thousand seven hundred
fifty dollars ($1,750) per degree; for each degree of permanent
impairment from eleven (11) to thirty-five (35), one thousand nine
hundred fifty-two dollars ($1,952) per degree; for each degree of
permanent impairment from thirty-six (36) to fifty (50), three
thousand one hundred eighty-six dollars ($3,186) per degree; for
each degree of permanent impairment above fifty (50), four
thousand sixty dollars ($4,060) per degree.
(5) With respect to disablements occurring on and after July 1,
2023, and before July 1, 2024, for each degree of permanent
impairment from one (1) to ten (10), one thousand eight hundred
three dollars ($1,803) per degree; for each degree of permanent
impairment from eleven (11) to thirty-five (35), two thousand
eleven dollars ($2,011) per degree; for each degree of permanent
impairment from thirty-six (36) to fifty (50), three thousand two
hundred eighty-two dollars ($3,282) per degree; for each degree
of permanent impairment above fifty (50), four thousand one
hundred eighty-two dollars ($4,182) per degree.
(6) With respect to disablements occurring on and after July 1,
2024, and before July 1, 2025, for each degree of permanent
impairment from one (1) to ten (10), one thousand eight hundred
fifty-seven dollars ($1,857) per degree; for each degree of
permanent impairment from eleven (11) to thirty-five (35), two
thousand seventy-one dollars ($2,071) per degree; for each degree
of permanent impairment from thirty-six (36) to fifty (50), three
thousand three hundred eighty dollars ($3,380) per degree; for
each degree of permanent impairment above fifty (50), four
thousand three hundred seven dollars ($4,307) per degree.
(7) With respect to disablements occurring on and after July 1,
2025, and before July 1, 2026, for each degree of permanent
impairment from one (1) to ten (10), one thousand nine hundred
thirteen dollars ($1,913) per degree; for each degree of permanent
impairment from eleven (11) to thirty-five (35), two thousand one
hundred thirty-three dollars ($2,133) per degree; for each degree
of permanent impairment from thirty-six (36) to fifty (50), three
thousand four hundred eighty-one dollars ($3,481) per degree; for
each degree of permanent impairment above fifty (50), four
thousand four hundred thirty-six dollars ($4,436) per degree.
(8) With respect to disablements occurring on and after July 1,
2026, for each degree of permanent impairment from one (1) to
ten (10), one thousand nine hundred seventy dollars ($1,970) per
degree; for each degree of permanent impairment from eleven
(11) to thirty-five (35), two thousand one hundred ninety-seven
dollars ($2,197) per degree; for each degree of permanent
impairment from thirty-six (36) to fifty (50), three thousand five
hundred eighty-five dollars ($3,585) per degree; for each degree
of permanent impairment above fifty (50), four thousand five
hundred sixty-nine dollars ($4,569) per degree.
(k) The average weekly wages used in the determination of
compensation for permanent partial impairment under subsections (i)
and (j) shall not exceed the following:
(1) With respect to disablements occurring on or after July 1,
2009, and before July 1, 2014, nine hundred seventy-five dollars
($975).
(2) With respect to disablements occurring on or after July 1,
2014, and before July 1, 2015, one thousand forty dollars
($1,040).
(3) With respect to disablements occurring on or after July 1,
2015, and before July 1, 2016, one thousand one hundred five
dollars ($1,105).
(4) With respect to disablements occurring on or after July 1,
2016, and before July 1, 2023, one thousand one hundred seventy
dollars ($1,170).
(5) With respect to disablements occurring on or after July 1,
2023, and before July 1, 2024, one thousand two hundred five
dollars ($1,205).
(6) With respect to disablements occurring on or after July 1,
2024, and before July 1, 2025, one thousand two hundred
forty-one dollars ($1,241).
(7) With respect to disablements occurring on or after July 1,
2025, and before July 1, 2026, one thousand two hundred
seventy-eight dollars ($1,278).
(8) With respect to disablements occurring on or after July 1,
2026, one thousand three hundred sixteen dollars ($1,316).
(l) If any employee, only partially disabled, refuses employment
suitable to the employee's capacity procured for the employee, the
employee shall not be entitled to any compensation at any time during
the continuance of such refusal unless, in the opinion of the worker's
compensation board, such refusal was justifiable. The employee must
be served with a notice setting forth the consequences of the refusal
under this subsection. The notice must be in a form prescribed by the
worker's compensation board.
(m) If an employee has sustained a permanent impairment or
disability from an accidental injury other than an occupational disease
in another employment than that in which the employee suffered a
subsequent disability from an occupational disease, such as herein
specified, the employee shall be entitled to compensation for the
subsequent disability in the same amount as if the previous impairment
or disability had not occurred. However, if the permanent impairment
or disability resulting from an occupational disease for which
compensation is claimed results only in the aggravation or increase of
a previously sustained permanent impairment from an occupational
disease or physical condition regardless of the source or cause of such
previously sustained impairment from an occupational disease or
physical condition, the board shall determine the extent of the
previously sustained permanent impairment from an occupational
disease or physical condition as well as the extent of the aggravation or
increase resulting from the subsequent permanent impairment or
disability, and shall award compensation only for that part of said
occupational disease or physical condition resulting from the
subsequent permanent impairment. An amputation of any part of the
body or loss of any or all of the vision of one (1) or both eyes caused by
an occupational disease shall be considered as a permanent impairment
or physical condition.
(n) If an employee suffers a disablement from an occupational
disease for which compensation is payable while the employee is still
receiving or entitled to compensation for a previous injury by accident
or disability by occupational disease in the same employment, the
employee shall not at the same time be entitled to compensation for
both, unless it be for a permanent injury, such as specified in
subsection (i)(1), (i)(4), (i)(5), (i)(8), or (i)(9), but the employee shall
be entitled to compensation for that disability and from the time of that
disability which will cover the longest period and the largest amount
payable under this chapter.
(o) If an employee receives a permanent disability from an
occupational disease such as specified in subsection (i)(1), (i)(4), (i)(5),
(i)(8), or (i)(9) after having sustained another such permanent disability
in the same employment the employee shall be entitled to
compensation for both such disabilities, but the total compensation
shall be paid by extending the period and not by increasing the amount
of weekly compensation and, when such previous and subsequent
permanent disabilities, in combination result in total permanent
disability or permanent total impairment, compensation shall be
payable for such permanent total disability or impairment, but
payments made for the previous disability or impairment shall be
deducted from the total payment of compensation due.
(p) When an employee has been awarded or is entitled to an award
of compensation for a definite period from an occupational disease
wherein disablement occurs on and after April 1, 1963, and such
employee dies from other causes than such occupational disease,
payment of the unpaid balance of such compensation not exceeding
three hundred fifty (350) weeks shall be paid to the employee's
dependents of the second and third class as defined in sections 11
through 14 of this chapter and compensation, not exceeding five
hundred (500) weeks shall be made to the employee's dependents of the
first class as defined in sections 11 through 14 of this chapter.
(q) Any payment made by the employer to the employee during the
period of the employee's disability, or to the employee's dependents,
which, by the terms of this chapter, was not due and payable when
made, may, subject to the approval of the worker's compensation board,
be deducted from the amount to be paid as compensation, but such
deduction shall be made from the distal end of the period during which
compensation must be paid, except in cases of temporary disability.
(r) When so provided in the compensation agreement or in the
award of the worker's compensation board, compensation may be paid
semimonthly, or monthly, instead of weekly.
(s) When the aggregate payments of compensation awarded by
agreement or upon hearing to an employee or dependent under eighteen
(18) years of age do not exceed one hundred dollars ($100), the
payment thereof may be made directly to such employee or dependent,
except when the worker's compensation board shall order otherwise.
(t) Whenever the aggregate payments of compensation, due to any
person under eighteen (18) years of age, exceed one hundred dollars
($100), the payment thereof shall be made to a trustee, appointed by the
circuit or superior court, or to a duly qualified guardian, or, upon the
order of the worker's compensation board, to a parent or to such minor
person. The payment of compensation, due to any person eighteen (18)
years of age or over, may be made directly to such person.
(u) If an employee, or a dependent, is mentally incompetent, or a
minor at the time when any right or privilege accrues to the employee
under this chapter, the employee's guardian or trustee may, in the
employee's behalf, claim and exercise such right and privilege.
(v) All compensation payments named and provided for in this
section, shall mean and be defined to be for only such occupational
diseases and disabilities therefrom as are proved by competent
evidence, of which there are or have been objective conditions or
symptoms proven, not within the physical or mental control of the
employee.
Formerly: Acts 1937, c.69, s.8; Acts 1949, c.242, s.1; Acts
1951, c.250, s.1; Acts 1955, c.326, s.1; Acts 1963, c.388, s.11; Acts
1971, P.L.354, SEC.2; Acts 1974, P.L.109, SEC.5. As amended by
Acts 1976, P.L.112, SEC.5; Acts 1977, P.L.261, SEC.5; Acts 1979,
P.L.227, SEC.5; P.L.95-1988, SEC.14; P.L.170-1991, SEC.19;
P.L.258-1997(ss), SEC.14; P.L.31-2000, SEC.8; P.L.1-2001, SEC.28;
P.L.134-2006, SEC.9; P.L.168-2011, SEC.13; P.L.275-2013, SEC.13;
P.L.204-2018, SEC.12; P.L.139-2020, SEC.5; P.L.32-2021, SEC.64;
P.L.160-2022, SEC.7.